March 17 2023

Cheap justice or restorative justice?

Cheap justice or restorative justice?

Old Bailey: the Central Criminal Court of England and Wales

I was recently approached to express an interest in joining a new All-Party Parliamentary Group (APPG) for Restorative Justice. These can be highly influential lobbying bodies especially if they are cross-party and led by evidence. The intention was influencing the future direction of criminal justice policy including putting in place better strategies and laws to enhance victims and offenders experience of justice in Great Britain. But alas, my first thought was ‘Here, we go again’, and I say this having served the restorative justice movement for almost 20 years.

Restorative justice has been portrayed as a more effective and cheaper justice option. This argument is pertinent in the post COVID-19 era, which will see unprecedented cuts and policy restructures caused by the world economic downturn. Implementing restorative justice in a difficult financial climate instantly brings up the question of cost and benefit. Although data on the financial viability of restorative justice are extremely limited, claims have been made that it is a cheaper option for governments.

For example, according to Shapland et al restorative justice can deliver cost savings of up to £9 for every £1 spent (2008). Victim Support also claims that (2010, p. 29), ‘if restorative justice were offered to all victims of burglary, robbery and violence against the person where the offender had pleaded guilty (which would amount to around 75,000 victims), the cost savings to the criminal justice system – as a result of a reduction in reconviction rates – would amount to at least £185 million over two years’. Furthermore, according to Matrix Evidence (2009), restorative justice practices would likely lead to a net benefit of over £1billion over ten years. The report concludes that diverting young offenders from community orders to a pre-court restorative justice conferencing scheme would produce a life time saving to society of almost £275 million (£7,050 per offender).

The cost of implementing the scheme would be paid back in the first year and during the course of two parliaments (10 years) society would benefit by over £1billion (2009). Time as a ‘unit cost’ has also been recorded in the scarce available literature. For instance, according to the 2010 Association of Chief Police Officers (ACPO) survey on restorative justice, the average time taken by Hertfordshire police officers dealing with minor crimes through ‘street restorative justice’ was 36 minutes as opposed to 5 hours 38 minutes spent on issuing reprimands. Translating this into cost meant £15.95 for restorative justice and £149.79 for a reprimand. Similar savings were found for Cheshire police (£20.21 vs £157.09) (Cheshire Operation Quest 2 2009).

Jumping in and out of the grave
During my 20 years in the criminal justice sector, I have seen restorative justice jumping in and out of its grave at least four times. Going as back as 2003, the then Labour Government presented its Restorative Justice Plan for introducing restorative justice in the criminal justice system (Gavrielides, 2003). Billions of pounds were spent on various research pilots, a ‘restorative justice unit’ within the Home Office, conferences and training. But restorative justice was never put forward as a consistent and available option for victims, offenders and their communities. I observed then, a weak restorative justice movement, which competed for the same attention and money, often without terms or reflection about the long-term consequences of their alliances. What was even more saddening was that our movement ostracise anyone who dared to raise the mirror of responsibility asking for self-reflection.

Investments in restorative justice re-started in 2013 with £29 million that went to Police and Crime Commissioners to help deliver restorative justice for victims over three years. The money was part of a wider allocated funding for victims of at least £83 million through 2015-16. Furthermore, the government passed the Crime and Courts Act 2013, inserting a new section into the Powers of the Criminal Courts (Sentencing) Act 2000. As a result of this Act, since December 2014, the courts have had the power to defer the passing of a sentence to restorative justice provided that all parties agree.

The Act also requires that anyone practising restorative justice to have regard to the guidance issued by the Secretary of State. Interestingly, both the legislative and the judiciary overlooked this condition for restorative justice sign off by the executive independently of its origin. Put another way, if the restorative justice movement was to deliver restorative justice within the criminal justice system, this will need to be under the watchful eye of the executive (i.e., the responsible Minister at the time). Not to my surprise, many restorative justice organisations saw this development as a great victory that would put restorative justice on the map, while allowing its roll out. It was greeted with enthusiasm and once again my voice was amongst the few who were seen as the trouble makers of our movement.

This change in legislation also enabled a selection of pilot schemes to be undertaken as ‘pathfinders’. In particular, the Ministry of Justice provided funding to three probation trusts to enable them to develop local models for the delivery of pre-sentence restorative justice in magistrate’s courts. Furthermore, with match funding from the Underwood Trust, it invested £2m to run what the press called ‘The first victim-led restorative justice programmes‘. These were run ‘in crown courts across England and Wales in an attempt to cut reoffending rates’. Further substantial funding was also invested by the same Ministry for setting up a register of restorative justice practitioners.

A few years later, the pathfinders and register were independently evaluated and not to my surprise, the results were rather disappointing (Kirby and Jacobson, 2015). Over an 18-month funding period and the engagement of 10 Crown Courts, only 55 pre-sentence restorative conferences and 38 ‘alternative restorative justice activities’ were carried out. A total of 2,273 victims were identified of which contact was successfully made with 1,201 of whom 446 expressed an initial interest in restorative justice. The defendant pleaded guilty in 179 of the cases with interested victims, which resulted in 147 adjournments for restorative justice (Kirby and Jacobson, 2015). The evaluation results summarised that: ‘The overall number of completed restorative justice activities was lower than had been anticipated at the outset of the pathfinder; this reflects a number of significant challenges to implementation’ (Kirby and Jacobson, 2015: 4).

Reality check
These disappointing results of the investments in ‘victim-led restorative justice’ alarmed Parliament and consequently held a public inquiry. An impressive amount of written and oral evidence was submitted, resulting in Parliament saying that ‘ring-fencing funding to Police and Crime Commissioners may appear superficially attractive, but we do not believe budgets for restorative justice could be set in a reliable or sensible manner’ (House of Commons, 2016: 3). The report also reads: ‘It is too soon to introduce a legislative right to access restorative justice services, but such a goal is laudable and should be actively worked towards. We believe a right to access such services should be included in the Victims’ Law, but that provision should only be commenced once the Minister has demonstrated to Parliament that the system has sufficient capacity.’

Parliament also reminded government and other stakeholders that the evidence on the financial effectiveness of restorative justice is still thin. Following evidence from various experts, the Parliamentary report concluded that ‘undue reliance should not be placed on the statistic that £8 is saved for every £1 spent on restorative justice’ (Shapland et al, 2008).

Getting it right
I could not feel more embarrassed as a restorativist and a researcher with membership to the restorative justice movement. How did we get it so wrong, and now can such an opportunity be missed? At the time, these questions were difficult to ask, let alone answer. A few years later, and as these funds started to dry out, accountability was sought within the movement. It then became clear that our internal interest battles and the singing of the sirens were just too strong to ignore.

These kind of opportunities are not unique to the UK. They serve as examples for anyone forming part of our movement independently of location. As a new APPG is set up and while policy makers and reformists seek better, cheaper forms of justice, I urge to learn from the mistakes of the past and be driven by evidence. I have asked many times (Gavrielides 2018; 2019; 2020; 2021) to listen to the voices of the users of the criminal justice system whether we call them victims, offenders and their communities. Restorative justice is not owned by anyone. It is an ethos that aims to share power and create bottom up solutions for crime prevention and control.